For anyone dealing with distressed mortgages, the story about the lender who said it would “work” with a defaulted loan, only to abruptly proceed to foreclosure, is all-to-familiar. A legal challenge against the lender must be based on existing legal precedent.
The January 27, 2011 decision in Aceves v. U.S. Bank, N.A. gives hope to borrowers who have been led on by their lender during the foreclosure period, only to have the lender change course and proceed with the sale of the property.
The decision provides a measure of relief by expressly stating that “promissory estoppel” is a theory of relief under California. (More on this below). However, the scope of the remedy is not certain, and the concluding portion of the opinion casts a damper over any expectation that Aceves will generate expansive relief for beleaguered homeowners.
The underlying facts were not complicated. According to the lawsuit, Mrs. Aceves obtained an adjustable rate loan secured by a deed of trust on her residence. “About two years into the loan, she could not afford the monthly payments and filed for bankruptcy under chapter 7 of the Bankruptcy Code.”
According to the lawsuit, “Mrs. Aceves intended to convert the chapter 7 proceeding to a chapter 13 proceeding and to enlist the financial assistance of her husband to reinstate the loan, pay the arrearages, and resume the regular loan payments.”
In her complaint, Mrs. Aceves said that “she contacted the bank, which promised to work with her on a loan reinstatement and modification if she would forgo further bankruptcy proceedings. In reliance on that Mrs. Aceves did not convert her bankruptcy case to a chapter 13 proceeding or oppose the bank’s motion to lift the bankruptcy stay.”
The lender sought to have the complaint dismissed, which motion was rejected. According to the court, “By promising to work with Mrs. Aceves to modify the loan in addition to reinstating it, U.S. Bank presented Mrs. Aceves with a compelling reason to opt for negotiations with the bank instead of seeking bankruptcy relief . . . But the bank did not work with plaintiff in an attempt to reinstate and modify the loan. Rather, it completed the foreclosure.”
The decision does not reach the merits of the dispute, holding only that the action could proceed because the plaintiff stated a legally-recognized claim. The court relied on the doctrine of “promissory estoppel,” which lies somewhere between fraud and contract.
Explained the court, “The elements of a promissory estoppel claim are (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.”
Thus, even where there is no legal contract, the injured party can seek relief. Held the court, “To be enforceable, a promise need only be definite enough that a court can determine the scope of the duty, and the limits of performance must be sufficiently defined to provide a rational basis for the assessment of damages . . . That a promise is conditional does not render it unenforceable or ambiguous.”
The famous decision in Hoffman v. Red Owl Stores, Inc., 26 Wis. 2d 683 (1965) explained that “Originally the doctrine of promissory estoppel was invoked as a substitute for consideration rendering a gratuitous promise enforceable as a contract. In other words, the acts of reliance by the promisee to his detriment provided a substitute for consideration.”
The Wisconsin Supreme Court continued. “We deem it would be a mistake to regard an action grounded on promissory estoppel as the equivalent of a breach-of-contract action . . . The third requirement, that the remedy can only be invoked where necessary to avoid injustice, is one that involves a policy decision by the court. ¶ We conclude that injustice would result here if plaintiffs were not granted some relief because of the failure of defendants to keep their promises which induced plaintiffs to act to their detriment.”
Returning to Mrs. Aceves, “the question [is] whether U.S. Bank made and kept a promise to negotiate with Mrs. Aceves, not whether [ ] the bank promised to make a loan or, more precisely, to modify a loan . . . The bank either did or did not negotiate.”
The court added that an oral promise to postpone either a loan payment or a foreclosure is unenforceable. “In the absence of consideration, a gratuitous oral promise to postpone a sale of property pursuant to the terms of a trust deed ordinarily would be unenforceable under Civil Code section 1698. The same holds true for an oral promise to allow the postponement of mortgage payments.”
Yet, the court explained that “the doctrine of promissory estoppel is used to provide a substitute for the consideration which ordinarily is required to create an enforceable promise. The purpose of this doctrine is to make a promise binding, under certain circumstances, without consideration in the usual sense of something bargained for and given in exchange. Under this doctrine a promisor is bound when he should reasonably expect a substantial change of position, either by act or forbearance, in reliance on his promise, if injustice can be avoided only by its enforcement.”
Finally, a frosty conclusion. “A promissory estoppel claim generally entitles a plaintiff to the damages available on a breach of contract claim. Because this is not a case where the homeowner paid the funds needed to reinstate the loan before the foreclosure, promissory estoppel does not provide a basis for voiding the deed of sale or otherwise invalidating the foreclosure.”
The inescapable fact is that there is no way to know whether a lender will approve a request for a loan modification. There are no unified rules or procedures for lenders to use in evaluating a request for a loan modification, meaning that the platitudes offered by lenders are almost always empty promises.
Aceves v. U.S. Bank, N.A. (January 27, 2011) 2011 DJDAR 1613